On Gingrich’s judicial power play

Mr. Gingrich thinks well of himself – by itself, a prerequisite for the presidency. Part of the American vetting process we call caucuses, primaries and campaigns is about inquiring just how well one thinks of oneself, and just how one thinks well of oneself.

Mr. Gingrich gives us a glimpse into both by his assault on activist judges. He has ramped up the rhetoric – far beyond its traditional mooring in the importance of presidential elections, because presidents populate the judiciary. That subtle interplay between the branches – a perfect instance of what we traditionally celebrate as “checks and balances” – doesn’t satisfy Mr. Gingrich.

He wishes to make a case for the other two branches aggressively taking back power from the judiciary. He makes this case radically, as befits the bigness of his ideas. Presidents (and presumably governors) are not necessarily bound by Supreme Court interpretations of the Constitution, entire courts (such as the Ninth Circuit) should be abolished, and individual judges should be held accountable for opinions that a president or a congressional committee consider unconstitutional, and subpoenaed, if necessary, to explain their decisions.

I disagree strongly with Mr. Gingrich’s splash-play on judges – but I hasten to add, his ideas are not “crazy.” The Supreme Court’s final authority on constitutional interpretation was an unsettled and controversial question before 1803, when Chief Justice John Marshall handed down the landmark Marbury v. Madison decision. And the controversy continued simmering thereafter (emphasis on “simmering,” as we conducted judicial and political business as if the issue were finally settled).

Mr. Gingrich is correct that Congress has the technical power to abolish and add lower courts, and even to haul judges before Congress. But not all technical powers are wisely exercised, a point that should resonate with conservatives.

Curiously, Mr. Gingrich’s remedy for a “constitutional crisis” (and for the record, we are not in the midst of a “constitutional crisis,” at least not if that phrase has any of the gravity that the Constitution itself has) is to radically politicize the Constitution. If you believe we’re in the midst of a constitutional crisis now, buckle your seatbelts. Strip the Supreme Court of supremacy in constitutional interpretation (a notion, ironically, with considerable liberal support), abolish the Ninth Circuit, and subpoena judges to explain their decisions to Congress – and we’ll be awash in weekly constitutional crises.

Mr. Gingrich might have sounded sensible had he urged a more serious constitutional conversation. For example, he could have called for serious congressional inquiries into constitutional doctrines applied by the courts. He could have promoted hearings by the House and Senate Judiciary Committees featuring panels of legal experts that educated Congress and the public on the origins, justifications and consequences of various holdings. That would be a public service, and smack less of branch bullying.

But of course, Mr. Gingrich believes he is seizing upon a hot-button issue, and doing so in a radical way that could galvanize conservative support for him as the only muscular conservative in the race for the Republican nomination.

As Mr. Gingrich has very little money and very little organization, compared to Mr. Romney, he rather desperately needs a surrogate for what organization and money get a candidate: credibility and momentum. Attacking activist judges plays well with the base, but is insufficiently attention-getting by itself. So Mr. Gingrich couples it with a grand re-shuffling of the constitutional balance of powers, as befits the bigness (and the bluster) of his ideas.

It’s a long shot, but it’s Mr. Gingrich’s Hail Mary – much as John McCain, with his similarly challenged campaign, threw the Sarah Palin Hail Mary – not with conviction that he was choosing carefully, but precisely with the knowledge that choosing carefully doomed him, and that only an apparently reckless long-shot, which might, just might, open into some kind of excitement and momentum, was his only hope.

The difference is that John McCain stared at the juggernaut of history bearing down upon him, and threw a Hail Mary, while Newt Gingrich imagines himself the juggernaut of history poised to sweep civilization, and throws a Hail Mary hoping how well he thinks of himself will be contagious.



On Occupyosity and Making Real versus Illusory Differences

I got sucked into Occupyosity by a Facebook friend’s posting of a particularly obnoxious article entitled, “What Exactly Is It that Occupy Critics Don’t Get About Civil Disobedience?” To read the article is to reminisce fondly about those days when we were 14 and 15 and 20 and absolutely certain, so abundantly clear in our early mushy work-in-progress brains, that we grasped the core truth, and that our doddering misdirected contemptibly careful and uncommitted elders didn’t even have rudimentary sense, much less our vision!

Mmmm, yes. It was a feeling so fine I would wish it for everyone, momentarily. “Getting it.” That’s the fascinating power trope of youth speaking to entrenchment — all manner of entrenchment, politicians pursuing naked self-interest, parents stuck in their eye-rolling, pathology-perpetuating ways, bosses being intractably stupid — oppressors all! And the poor Masses, swooning to the insidious fiddles of nefarious Power Elites — oh my the pitiable Masses, those dim-witted enablers of oppression who let this vast stupidity avalanche over their own interests, well, they’re almost as bad as the oppressors. They almost forgivably just don’t get it. Like we do. Mmmm, yes…

Back when I Got It, I was liberal, supremely confident, and certain my Dark Foes lacked the basic synapse that connected thinking and Compassion. And by Compassion, I meant, you know, Caring Deeply about a set of politically significant Abstractions. And by thinking, I meant that thing I did in abundance that set me apart from the dunderheads who couldn’t see the abject stupidity of Gerald Ford and Ronald Reagan. I was teaching in Kenya during Reagan’s reelection campaign, and swaggeringly bet my possessions with a transient American tourist that America would never reelect that buffoon.

Which is to say, I was a wincingly ridiculous liberal — and I know that none of my liberal readers here is that kind of liberal (except for the three in my sidebar survey who say they are so extremely liberal they almost come full circle to fascist, unless they were kidding). Do not feel obliged to defend yourselves. But I do see a bit of my old self in Occupyosity. But just a bit, as I will explain.

First I hasten to add, I see intermittently much to admire in Occupyosity. I see individuals dedicated to mediating conflict. I see individuals articulately decrying their comrades’ anti-Semitic outbursts and other hate rants. I see surges of sincerity, genuine appeals to economic fairness and focus on jobs. I see capable fundraisers (a war chest of several hundred thousand dollars). I see individuals focused on cleanliness and spontaneous sanitation departments. I see individuals focused on feeding — their own and the surrounding homeless. I see individuals dedicated to literacy, and even a “people’s library.”

I admire each of the foregoing individuals, and would have much to learn from them in riveting individual conversation. I just wonder why they’re not simply doing what they do so well — why these talented individuals aren’t very busy raising money, cleansing and ordering, feeding, and teaching in their own communities — and making a measurable difference they cannot possibly make as simpleton trespassers? Why are they finally doing what they do well in consort with a rag-tag aggregation of petty (and occasionally felonious) criminality and political vapidness?

Bias and serious personal deficit alert: I don’t do groups. I love professional football but will never, ever, actually go to a stadium and endure my species behaving that way. I like it slickly mediated on television, thank you — and even then, the crowd noise vexes me. I believe, with faux-mathematical precision, that people gathered in numbers greater than seven behave exponentially more mindlessly and recklessly with each additional person. I believe, with faux-sociological precision that groups, over individuals, are inclined in predictable relation to their numbers to the greatest atrocities — including the atrocity of embracing massive injustice, which they would never do as individuals — for the sake of silly solidarity with their makeshift identity-pumping group.

“Mob,” the very word, makes me shiver. From the Latin mobile vulgus, meaning vulgar hand-held devices and the spectacularly brazen rudeness committed millions of times a day by owners of these diabolical grace-suckers… oh wait, another subject, I digress. Mobile vulgus, the “gathered transient commoners,” the “mob,” as our language, with its gift for Anglo-Saxon grunts, shortened the Latin phrase. Which makes me scurry to Edmund Burke for solace, for a measure of relief against the Jacobin fury and orgy of self-righteous slaughter. Mindless anger and literal carnage acquire lethal force in numbers. Genocide — the ultimate human horror — germinates and cannot gather force without mobile vulgus.

Human beings are wonderful, ever less so in the aggregate.

Now you know my visceral suspicion of Occupiosity. As it was my visceral suspicion of the Tea Party. Collections, both, of interesting people, squandering their charm in service to their comforting mobs. But then I saw very little of the contempt for common manners in Tea Party gatherings. Quite the contrary. More like PTA gatherings writ large. A very few bad actors to be sure, but by and large well-mannered people, roughly organizing around a coherent grievance about our over-reaching government, who never broke a single ordinance. And then I saw the fury and orgy of leftist contempt for them, the vicious bile and ridicule heaped upon them, and I actually felt sympathy for a group I didn’t particularly like.

I still don’t like the Tea Party and I don’t like Occupiosity, such is my abiding distaste for determined gatherings of too like-minded people. But I am struck by the astounding hypocrisy of people who celebrate Occupiosity while slamming the Tea Party — these twin burps of challenging times. Like, to come full circle, the Seattle-based lad who authored “What Exactly Is It that Occupy Critics Don’t Get About Civil Disobedience?” The Tea Party — or “teabaggers,” as he offensively prefers, waved “their trademark poorly-spelled signs,” and got more media attention than his favored labor-union-driven rally about health care. And then Occupiosity got just as much media attention, simply because the Occupiers committed “civil disobedience” (that is, they “shut down a goddam bridge”), and he’s pissed, whereupon he defends, in Saul Alinsky style, the attention-getting prowess of “shutting down a goddam bridge,” and bludgeons the people who might wish the Occupiers would simply behave a little better.

What exactly is it the lad doesn’t get about “civil disobedience,” as that hallowed term is now commonly understood in our political parlance? Gandhi and Martin Luther King promoted deliberate, non-violent disobedience and violation of manifestly unjust laws, and did so with stupendous honor and self-sacrifice. I am a conservative today with enormous respect for some of the liberals of yesteryear, what they did and how they did it, and how much we owe our modern civil polity to their steadfast courage against entrenched injustice.

But I have little patience for people piggy-backing willy-nilly on that legacy who fundamentally misunderstand it. Occupiosity isn’t protesting any particular unjust law the way Rosa Parks so courageously did. I’ve yet to hear about any specific law the Occupiers are challenging. They’re just protesting “economic injustice,” or “corporate greed,” or “capitalism.” And in the service of that vastly vague objection, some of their numbers are breaking the law — even with substantial latitude to do their thing.

To be sure, police have run the gamut from responding well to badly. Let it be a given that when you “occupy” places that aren’t yours, when you “shut down a goddam bridge,” you tend to invite a bit of push-back, even conflict. When you disrupt neighborhoods, the neighbors can get testy. So instead of critical inquiry into what the Occupiers want, we get a media frenzy of dramatic sub-plots involving rapes, murders, and pepper spray. None of this gets us beyond the level of shallow spectacle. None of this gets us beyond a juvenile celebration of “idealism” and its discontents (or, for the older wistful spectators of the spectacle, a Big Chill-like nostalgia — and by the way, my pseudo-sociological conclusion regarding groups larger than seven comes, entirely arbitrarily, from the seven old friends in The Big Chill).

And I keep coming back to those conversations in my head with the Occupiers, the conversations that remain imagined because of my admittedly idiosyncratic distaste for large gatherings. Okay, if you’re not sure what you specifically want, how about doing what you do so well in your own community? How about making a small but real and meaningful difference instead of wasting your time and abundant community resources thinking you’re making some media-lusty and empty “big” difference by simply Occupying?

On Whittaker Chambers and Right and Wrong

Fifty years ago last month, Whittaker Chambers died. Last month I turned 52 and finally finished his remarkable book, Witness. Whittaker Chambers was a Communist, and then a Soviet spy, when it mattered rather enormously. Appalled by the Molotov-Ribbentrop Pact between the Soviet Union and Nazi Germany, and profoundly by Stalin’s purges, Chambers finally broke with Communism and became an informant.

More to the point, Chambers found God, and identified the amoral atheism of Soviet Communism as a grievous threat to democracy — indeed, in his view, a peril likely to prevail because the Communists were more determined. No moral code, except steadfast adherence to the party line, constrained the Communists. If the party line dictated that you salute Nazi Germany and Trotsky one day, and then condemn Nazi Germany and Trotsky the next, you did both with resolution and nary a hint of cognitive dissonance. It mattered only that the party cause, and the ultimate dialectical resolution, be advanced.

Chambers believed Communists would prevail. Yet he fought their spy ring by testifying against them. He identified several individuals in American government who were Communist spies, including, most famously, Alger Hiss — the State Department functionary who had been at Yalta. And there begins a fascinating chapter of America’s culture wars. Harvard-educated Alger Hiss versus working-class farmer Whittaker Chambers. Chambers testified by himself. Hiss defended himself with a battery of the best lawyers in the nation.

Deny, always deny, as Chambers described the Communist imperative, because lying for the cause was a secular virtue. And Hiss predictably denied that he was a Communist until he died, in his 90s. But he was convicted for perjury, and indeed he was a Communist, and a Soviet spy. His defenders were legion. Two Supreme Court justices testified as character witnesses on his behalf. The New Deal elite overwhelmingly favored Hiss. And they were wrong.

An “expert” avoids all the small errors and sweeps on to the grand fallacy. American distrust of intellectuals — that impulse that Europeans deride as benighted — usefully checks the ideological condescension and statist urgencies of America’s intellectuals. On the American class structure in the 1930s, Chambers quotes a European at a dinner party: “In the United States, the working class are Democrats. The middle class are Republicans. The upper class are Communists.”

In the Chambers camp were the common men and women, whom God, as Lincoln said, must have dearly loved because he made so many of them. Most of us are common men and women. We have no ancestry or coat of arms except as kitsch. We sport no ostentatious Yale chair in our office and rarely correct another’s grammar. We think we know the difference between right and wrong and sweetly urge the former.

Just to have a clear sense of right and wrong matters. What made the Communists in Chambers’ day so formidable — what convinced him they would win — was their subordination of right and wrong to the party line. That basic impulse — understanding right and wrong, at times decency and indecency — mattered nothing to the Communists. Anything goes, so long as it advances the prosperity of the party.

As it happens, Chambers was mistaken. Communism did not prevail. Americans, common men and women, understood the peril of the Communist ideology and fought it. As an instance in understanding the difference between right and wrong, there is no greater world historical example.

Violent Video Games in the Supreme Court

The Supreme Court correctly held, 7-2, that California’s law restricting minor’s access to “violent” video games violated the First Amendment. Last year, the California law prompted me to say, “Governor Schwarzenegger, Leave Those Kids Alone,” and to predict the Supreme Court would do what it has now done.

The First Amendment is fascinating in so many ways, not least the unusual bedfellows it creates. The irascible conservative Scalia authored the majority opinion. All of the liberal justices joined his opinion. The other irascible conservative, Thomas, dissented, and was joined by the moderate Breyer. Conservative Justices Alito and Roberts submitted an opinion concurring in the result, but holding out the possibility that legislatures could do this kind of regulation, if they just got it right.

That’s effectively a 5-4 vote on whether legislatures can restrict access to “violent” video games. That’s close. This debate will rage on.

Are sex and violence equivalent from a First Amendment perspective? That’s the essential issue.

Obscenity — beyond-the-pale graphic sexuality — doesn’t get First Amendment protection. And so promoters of the California law sought to equate violence and obscenity. And that’s an interesting discussion. Justice Scalia wrote, in somewhat conclusory fashion, “the obscenity exception to the First Amendment does not  cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.'”

That is strictly true, as a matter of legal precedent, but doesn’t answer the question whether violence should be treated like obscenity, or whether there are degrees of graphic violence, like degrees of graphic sexuality, that government may more easily regulate. Can there be obscene violence?

Most of us would admit to using the phrase “obscene violence.” But we weren’t talking about the First Amendment at the time. And this is crucial. True “obscenity,” the sexual expression that doesn’t get First Amendment protection, must be truly egregious. Soft pornography, for example, is not obscenity.

Sex and violence are different. Let us count the most obvious ways first. We protect our children from overt sexuality through their growing-up years. We do not protect our children from overt violence through their growing-up years (unless we shield them from most sports, all hunting, the evening news, most religious texts, or any advice on how to deal with the schoolyard bully). Violence is a popular staple of mainstream culture, including pop culture to which 5-year-olds have easy access. Sex is a vastly ambiguous, frequently apologetic, staple of mainstream culture. Both sex and violence can yield good things — but we’re much more comfortable discussing the do’s and don’ts of violence with our ten-year-old than the do’s and don’ts of sex with our ten-year-old.

In fact, we need to educate our children in the actual necessity of violence, at times. Self-defense is the best example. There are others. Violence permeates our pop culture because there is so much fair violence and so much unfair violence in real life.

We do not need to educate our children in the actual necessity of sex. That takes care of itself.

We understand the impulse of sex. We simply do not wish to encourage our children to do it. We understand the impulse of violence and we wish the greatest education about it. We want our children to understand that sometimes violence is fair and sometimes violence is unfair. We wish most profoundly that our children understand this distinction.

Violent video games are an education in violence, and what is fair and unfair. Obscenely sexual videos do not educate. At all.

Sex and violence are different. The Supreme Court got it. Sort of.

Obama’s Bizarre Illegal War in Libya

At the inception of the lethal not-war (and now, not even “hostility”) in Libya, I questioned the wisdom of military action with squishy aims. Squishy has gotten squishier — and politically muddled.

The Obama administration justifies the Executive Branch military action in Libya — that is, use of lethal American military force without congressional authorization, contrary to the War Powers Resolution — by saying that the bombing is not “hostility,” and therefore doesn’t trigger the requirement of congressional authorization. Some administration lawyers disagree.

Air strikes, cruise missile bombardments, and drone operations at a cost of $10 million a day, the dissenters suggest, amounts to a “hostility.” And their view, in my view, enjoys the incidental virtue of common sense.

The surreality of our Libyan not-war got even stranger on Thursday, when the House of Representatives voted convincingly — 123-295 — against authorizing the limited use of the United States Armed Forces in support of the NATO mission in Libya. Republicans voted overwhelmingly against authorization, while all but eight of the 123 supporters were Democrats.

What’s going on? Republicans now favor limitations on the Executive Branch’s war-making powers, while Democrats (the authors of the War Powers Resolution over President Nixon’s veto) support the most expansive interpretation of Executive Branch war-making powers since the Vietnam War (which mostly predated the War Powers Resolution)?

Has an illegal war become part of the president’s triangulation strategy (“I’m not so liberal America. I kill terrorists and enemies of America with the best of them.”)?

Purple Nation columnist Lanny Davis thinks the president should have simply sought congressional authorization.

What is unusual here is that President Obama chose to accept a linguistic legal analysis rather than a political one to thread the needle on this issue. Surely he must know that his definition of “hostilities,” excluding the U.S. shooting missiles from Predator drones or air strikes aimed at suppressing enemy air defense, is a stretch at best.

The question is, why go there? Why not, instead, go to Congress and seek authorization?

He wrote a day before the stinging rebuke of the House vote. Obviously the administration didn’t have the votes. And so it chose to preserve the War Powers Resolution for use against some future Republican president, while engaging in tortured linguistics to argue that it could bomb with impunity without engaging in “hostilities.”

The Dividist blogger puts it succinctly: “We now have a President who is asserting that it is completely within his authority to commit our military resources to strikes against another country, and never be required to request the authority of Congress. This is claim of executive war power far beyond anything that was ever asserted in the Bush/Cheney administration.”

Here is what candidate Obama said in opposing the Iraq war his administration ended up supporting:

A war to disarm a dictator has become an open-ended occupation of a foreign country. This is not America. This is not who we are. It’s time for us to stand up and tell George Bush that the government in this country is not based on the whims of one person, the government is of the people, by the people and for the people.

We thought we learned this lesson. After Vietnam, Congress swore it would never again be duped into war, and even wrote a new law — the War Powers Act — to ensure it would not repeat its mistakes.

What a robust, and massively hypocritical, defense of the War Powers Act — that same act that President Obama now flaunts.

And so we come full circle to squishy aims. We’ve come to this bizarreness because of squishy aims. This administration wished most profoundly both to appear unaggressive and aggressive. This administration wished to project American power and not to appear to be projecting American power. This administration wished, essentially, to hoodwink Americans and the world, with an eye to 2012, and preserve the ability to claim both its muscularity and its good-natured passivity, whichever it needed most politically.

The problem is, as is typically the problem with squishy aims, human beings are dying and American credibility suffers. “Obama’s attack has been too feeble to bring down Gaddafi, but big enough to discredit us for trying and failing; too wrapped up in U.N. legalities, but too little concern over national interests.”

I agree with Lanny. The president should have sought congressional authorization — but for very specific and defined aims — like the elimination of Gaddafi. That might have passed. And that might have preserved the War Powers Resolution without yet another assault on common sense of the sort that makes so many Americans cynical about how our government works.

Goodwin Liu should not be a Ninth Circuit judge

Presidential elections matter for many reasons — not least, but too little noticed, because of judicial nominations. Federal judges, and Supreme Court justices, typically serve for life. Their philosophies, their ideologies, their view of the Constitution, influence American law and politics vastly more than some of the congressional contests we so closely watch.

The Ninth Circuit United States Court of Appeals (covering California, Oregon, Arizona, Alaska and Washington) — by far the most liberal, and most-reversed, circuit in the land — does not need another liberal judge. To be sure, the nominees to the Ninth Circuit during this administration will be liberal — but there is liberal, and there is Goodwin Liu.

President Obama’s nomination of Goodwin Liu to the Ninth Circuit was blocked by Republican filibuster on Thursday. It was a principled vote. I do not say that lightly. I’ve written before that presidents are entitled to deference in their judicial nominations — precisely because presidential elections have consequences, and Americans must better appreciate judicial nominations as one such substantial consequence.

When Republican Senator Lindsey Graham voted in favor of President Obama’s nomination of Elena Kagan to the Supreme Court in the Senate Judiciary Committee, to the great consternation of many conservatives, I defended him. Liberal presidents get to do liberal things — and unless Elena Kagan was unqualified (she was not) or the sort of ideological liberal who threatened especially aggressive promotion of a liberal agenda (she was not), then the president gets his pick.

Goodwin Liu warranted Republican opposition. His published views are not only not mainstream — they’re the most far-reaching re-writing of the Constitution in contemporary legal and political dialogue.

Liu promotes not merely statutory, but constitutional, rights to health care, education, housing and welfare payments — meaning these entitlements, like rights to free speech, freedom from unwarranted search and seizure, etc., would be beyond the power of any future legislature to question or curtail.

“Rights to government assistance,” Liu insists, “are essential to liberty,” and therefore a fundamental right. And Europe proves it! The “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.” Goodwin Liu says every form of welfare is a constitutional right — meaning we cannot any longer debate the propriety or extent of any government hand-out — it’s a constitutional right. We neatly remove from the political realm, according to Liu, every argument about health care, education, housing, and welfare payments — because these are “constitutional rights.”

If ever there were a reason for Republicans — for Americans generally — to oppose a judicial nominee — this is it.

This is why presidential elections profoundly matter. President Obama wants Goodwin Liu on the Ninth Circuit, and the left is touting Goodwin Liu as a future Supreme Court nominee. And Goodwin Liu represents the most substantial change to our understanding of the Constitution in this generation.

Republican Senator Jeff Sessions says of Liu: “His record reveals that he believes the Constitution is a fluid, evolving document with no fixed meaning.”  No, only half-right — and in part, dangerously wrong. Goodwin Liu believes the Constitution “fixes” a host of “rights” and takes them forever out of the realm of political debate.

The road to serfdom begins with the kind of judiciary Goodwin Liu envisions.

In Germany, saying you’re “glad” Osama bin Laden is dead is a crime??

A German judge filed a criminal complaint against Chancellor Angela Merkel for saying she was “glad” Osama bin Laden was dead. (!)

He cites section 140 of the German Criminal Code, which forbids the “rewarding and approving” of crimes. In this case, Merkel endorsed a “homicide,” which is punishable by up to three years’ imprisonment or a fine. (!)

A month ago, I wrote that the UK, France and Egypt need a First Amendment. Desperately. Oh my must I urgently now add Germany.

Chancellor Merkel says she is “glad” Osama bin Laden is dead — and she faces criminal charges? Could political silliness get more profound? Has Europe gone completely bonkers?

Hang on — no problem insisting that the death of Osama bin Laden shouldn’t be an occasion to rejoice. Go with it. But… um… you say in Germany you’re glad Osama bin Laden is dead, and you’re looking at three years in jail??

This is an American gotcha’ moment. This is exactly how America’s First Amendment tradition confers adulthood on American political dialogue, while Europe languishes in childhood — for lack of a true free speech tradition.

On one thing Europeans enjoy agreeing: Americans are stupid.

But ask any American, should President Obama face criminal charges for welcoming the death of Osama bin Laden? Every American would sound profoundly intelligent. The First Amendment confers that intelligence on all Americans as a birthright.

Are Germans stupid?

No, Germans aren’t stupid — just a little behind Americans in recognizing the profound political value of free speech.